Alan Jenkins v The Information Commissioner & Anor

Introduction:

1.This is an appeal brought under section 57 of the Freedom of Information Act 2000 ("FOIA") against Decision Notice IC-282786-T7V3 (“DN”) issued by the Information Commissioner on 13 May 2024.

2.The appeal concerns information requested from the Northern Ireland Prison Service ("NIPS"), acting through the Department of Justice (Northern Ireland) ("DoJ"), relating to the operation of X-Ray Body Scanners ("XRBS") within the Northern Ireland prison estate. Whilst the total number of scans conducted was disclosed, NIPS withheld information relating to the number of positive scan indications and the number of occasions on which contraband was subsequently recovered. The information was withheld pursuant to section 31(1)(a), (b) and (f) FOIA. The Commissioner upheld that decision in the DN.

3.The Appellant contends that the information should be disclosed. He submits in substance that disclosure would promote transparency and accountability concerning the operation of XRBS and would assist scrutiny of whether scanning practices are being carried out in accordance with published policies. He further argues that the issues raised extend beyond his individual circumstances and concern a wider cohort of prisoners returning from temporary release.

Background:

4.NIPS introduced XRBS technology into the Northern Ireland prison estate in or about March/April 2023 as part of its wider strategy to prevent the introduction of drugs, prohibited articles and other contraband into prisons. NIPS regards internal concealment as a significant method by which such items are trafficked into custody and considers XRBS to be an important tool in addressing that risk.

5.On 26 October 2023 the Appellant's representatives submitted a request under FOIA seeking statistical information concerning the use and effectiveness of XRBS. The request sought:

(a)

the number of occasions on which XRBS had been used;

(b)

the number of positive scan indications; and (c)

the number of occasions on which contraband was subsequently recovered following a positive scan.

6.NIPS disclosed the total number of completed scans undertaken during the relevant period, namely 5,866 scans between March and October 2023. However, it refused to disclose the information sought in relation to positive scan indications and subsequent recoveries of contraband. NIPS relied upon the exemption contained in section 31 FOIA, contending that disclosure would provide insight into the effectiveness of prison anti-smuggling measures and would be likely to prejudice the prevention and detection of crime, the apprehension and prosecution of offenders and the maintenance of security and good order within prisons.

7.The Appellant sought an internal review and subsequently complained to the Commissioner. In Decision Notice IC-282786-T7V3 the Commissioner concluded that section 31(1)(a), (b) and (f) were engaged and that the public interest favoured maintaining the exemption. The present appeal followed.

8.During the course of the appeal the Appellant relied upon additional material arising from separate judicial review proceedings, including correspondence acknowledging that prisoners returning from temporary release may constitute a recognised cohort for whom scanning may be considered under local search strategies. The Appellant argued that this demonstrated a broader public interest in scrutiny and accountability extending beyond his own individual circumstances.

The Issues:

9.The information in dispute is limited. The total number of XRBS scans undertaken during the relevant period has already been disclosed. The withheld information concerns the number of occasions upon which a scan produced a positive indication of internally concealed contraband; and the number of occasions upon which contraband was subsequently recovered following such a positive indication.

10.The Appellant seeks those figures in order to facilitate scrutiny of the operation and effectiveness of XRBS and, in particular, to assess whether scanning practices are being exercised consistently with the policies governing their deployment. The Respondents contend that the figures themselves reveal operational effectiveness data relating to an important prison security measure and that disclosure would be likely to prejudice interests protected by section 31 FOIA.

Engagement of Section 31:

11.The first issue is whether the withheld information engages section 31(1)(a), (b) and (f) FOIA.

12.We have no difficulty in concluding that the interests relied upon by NIPS fall squarely within those provisions. The prevention and detection of crime, the apprehension and prosecution of offenders, and the maintenance of security and good order within prisons are plainly interests protected by section 31.

13.The more substantial question is whether disclosure of the specific information sought would, or would be likely to, prejudice those interests. Applying the principles identified in Hogan and approved by the Court of Appeal in DWP v Information Commissioner, we must be satisfied that the asserted prejudice is real, actual and of substance, that there exists a causal connection between disclosure and prejudice, and that the risk of prejudice is a real and significant one.

14.We accept the Appellant's submission that the request does not seek operational manuals, security procedures, intelligence assessments or deployment methodologies. The information sought consists of aggregate statistical information.

15.However, it does not follow that statistical information cannot itself be operationally sensitive. The figures sought concern the practical outcomes achieved by a security measure deployed for the specific purpose of detecting internally concealed contraband. In our judgment, the information sought is properly characterised as information concerning operational effectiveness rather than information concerning policy alone.

The Risk of Prejudice:

16.The principal focus of our deliberations was whether NIPS had established a sufficient link between disclosure of the requested figures and the prejudice claimed.

17.Having considered the evidence and submissions as a whole, we are satisfied that it has.

18.Disclosure would reveal not only how frequently positive indications were recorded, but also the extent to which those indications subsequently resulted in the recovery of contraband. Those figures would provide information concerning the practical effectiveness of XRBS as a tool for detecting internally concealed items. In our view such information would be capable of assisting those seeking to assess the effectiveness, limitations or vulnerabilities of prison anti-smuggling measures.

19.We emphasise that NIPS is not required to demonstrate that prejudice would inevitably occur, nor that criminal actors would certainly exploit the information. The test relied upon throughout these proceedings is the lower statutory threshold of " would be likely to prejudice". The question is therefore whether there exists a real and significant risk of prejudice rather than a remote or fanciful possibility. We are satisfied that such a risk exists.

20.We also bear in mind that disclosure under FOIA is disclosure to the world at large. The information cannot be considered solely by reference to the Appellant's own objectives nor confined to those persons acting lawfully and responsibly. The Tribunal must assess disclosure on the footing that the information would enter the public domain and become available to all persons, including those seeking to circumvent prison security arrangements.

The Mosaic Effect:

21.We have also considered the submissions concerning the so-called mosaic effect.

22.The Tribunal recognises that the concept cannot relieve a public authority of demonstrating a real and reasoned basis for the prejudice claimed. Nevertheless, it is a principle recognised both in the Commissioner's guidance and in previous authorities that information may acquire greater significance when considered alongside other information already available.

23.We are satisfied that the information sought is capable of contributing to a broader understanding of the effectiveness of prison anti-smuggling measures and the operational success of XRBS. The mosaic effect is therefore a relevant consideration in assessing prejudice, although not the sole basis for our decision.

Public Interest in Disclosure:

24.The Tribunal accepts that there are significant public interest considerations favouring disclosure.

25.XRBS constitute an intrusive security measure operating within a custodial environment. There is a legitimate public interest in transparency concerning the operation of such measures, accountability for their use and public understanding of whether they are achieving their stated objectives. Disclosure would therefore advance important FOIA values of openness and accountability.

26.We further accept that the Appellant identified matters which go beyond his own personal circumstances. In particular, the DSO correspondence demonstrates that prisoners returning from temporary release may constitute an identified cohort for whom scanning measures may be considered within local search strategies. We therefore accept that the public interest engaged is broader than scrutiny of the Appellant's treatment alone.

27.To that extent we consider that the Appellant identified a wider public interest than was fully reflected in the Commissioner's original assessment. We have therefore attached greater weight to the public interest in transparency and accountability than would be justified if the appeal concerned only an individual grievance.

Public Interest in Maintaining the Exemption:

28.Set against those considerations is the substantial public interest in protecting prison security and preventing the introduction of contraband into prisons.

29.We attach considerable weight to those interests. The introduction of drugs and other prohibited articles into prisons has obvious implications for prisoner welfare, staff safety, institutional order and the prevention and detection of crime. Maintaining the effectiveness of measures designed to counter those risks is itself a matter of significant public importance.

30.We also attach weight to the fact that the information sought concerns the practical effectiveness of a security measure. Published policies and guidance relating to XRBS are already available. What is requested here is information from which conclusions may be drawn concerning operational success and effectiveness. The disclosure side of the balance is therefore weaker than in a case concerned with previously undisclosed policy or decision-making criteria.

31.Finally, whilst not determinative, we take into account the existence of alternative mechanisms through which concerns regarding the operation of XRBS may be examined, including complaints procedures, Ombudsman processes and judicial review proceedings. Those mechanisms do not answer the request made under FOIA, but they do mean that accountability is not entirely dependent upon disclosure of the withheld figures.

Discussion:

32.This was not an unarguable appeal. We accept that there is a genuine public interest in scrutiny of the operation and effectiveness of XRBS and that the Appellant identified a wider context than was fully apparent from the original complaint.

33.Nevertheless, having undertaken the balancing exercise for us and on the basis of all the evidence before us, we are satisfied that the public interest in maintaining the exemption carries greater weight.

34.We are unanimous in the view that disclosure of the withheld information would be likely to provide useful operational intelligence concerning the effectiveness of a significant prison anti-smuggling measure and that there exists a real and significant risk of prejudice to the interests protected by section 31(1)(a), (b) and (f).

35.In our judgment the strong public interest in protecting prison security, preventing the introduction of contraband into prisons and preserving the effectiveness of law-enforcement measures outweighs the public interest in disclosure of the requested information.

Conclusion:

36.For the reasons set out above, the Tribunal unanimously conclude that the withheld information engages section 31(1)(a), (b) and (f) FOIA.

37.We are satisfied that disclosure of the information sought would be likely to prejudice the prevention and detection of crime, the apprehension and prosecution of offenders and the maintenance of security and good order within prisons.

38.We recognise the legitimate public interest in transparency, accountability and scrutiny of the operation of XRBS. We also accept that the material subsequently relied upon by the Appellant demonstrates that the issues raised extend beyond his own individual circumstances and concern a wider cohort of prisoners.

39.However, having conducted our own independent assessment of the evidence and performed the balancing exercise required by section 2(2)(b) FOIA, we conclude that the public interest in maintaining the exemption outweighs the public interest in disclosure.

40.The Commissioner cannot therefore be said to have made an error of law in the exercise of his discretion to conclude that the information was exempt from disclosure under section 31 FOIA.

41.Accordingly, the appeal is dismissed, and the Decision Notice is affirmed.

Brian Kennedy KC 07 September 2026.